Cynics may argue ethics are the last thing advocates need but while lawyers in the UK are highly regulated, the position is less clear in international arbitration. This was one of the topics addressed by Professor John Uff CBE QC in the sixteenth King’s College Construction Law Association (KCCLA) Sweet & Maxwell talk, which took place earlier this month. As he pointed out, advocates in different jurisdictions are subject to different regimes. There is an increasing concern about how advocates behave. This led to the introduction of the IBA Guidelines on Party Representation in International Arbitration (May 2013).
How are others regulated?
Professor Uff pointed out that other parties in arbitration proceedings are already regulated. The impartiality of the tribunal has been enshrined in section 1(a) of the Arbitration Act 1996 and the IBA Guidelines on Conflicts of Interest in International Arbitration (May 2004) provide a traffic light system for the practical application of general standards by arbitrators.
Why should advocates also be regulated?
Where advocates are concerned, the consideration of ethics gives rise to many difficulties in international arbitration, including:
- Difficulties when advocates are subject to the professional codes of conduct and rules of their own country and not those of the venue of the arbitration.
- Inconsistencies between different codes and rules applicable to advocates involved in the same case.
- Advocates who are not lawyers and are not subject to any professional codes of conduct.
The common issue
A typical example of challenges facing advocates are issues regarding connections with tribunal members leading to allegations of bias. Professor Uff referred to the Hrvatska Elektroprivreda v The Republic of Slovenia ICSID ruling where the tribunal commented that:
“The Tribunal is concerned – indeed, compelled – to preserve the integrity of the proceedings and, ultimately, its Award. Undoubtedly, one of the ‘fundamental rules of procedure’ referred to in Article 52(l)(d) of the ICSID Convention is that the proceedings should not be tainted by any justifiable doubt as to the impartiality or independence of any Tribunal member.”
The tribunal considered that a barrister’s continued participation could lead to a reasonable observer to form a “justifiable doubt” in the circumstances and disqualified the barrister.
However, in the 2010 ICSID case, The Rompetrol Group N.V. v Romania, the tribunal rejected an application for the removal of an advocate who had practised in the same law firm as one of the arbitrators until the end of 2008.
With the real possibility of inconsistencies in the application of rules and codes in international arbitration, it is therefore no surprise that little in the way of general principles applicable to the conduct of advocates in international arbitration have been established.
What the IBA rules and guidelines have to say
The IBA Guidelines on Party Representation in International Arbitration (May 2013) have taken a step towards providing an aligned ethical code for advocates in international arbitration. The guidelines include provisions that advocates:
“should not make any knowingly false submission of fact to the Arbitral Tribunal” (Guideline 9.)
…and that an advocate…
“should not suppress or conceal, or advise a Party to suppress of conceal, Documents that have been requested by another Party…” (Guideline 16.)
Guidelines 26 and 27 set out the remedies for misconduct, which include cost sanctions.
The draft LCIA Rules issued in February 2014 also include rules and guidelines regarding the conduct of advocates. Notably, Article 18.5 requires each party to ensure that all its legal representatives have agreed to comply with the general guidelines contained in the Annex to the LCIA Rules, as a condition of appearing by name before the Arbitral Tribunal. The annex covers issues such as the:
- Unfair obstruction of the arbitration.
- Making of false statements and the preparation of false evidence.
- Concealment of documents which have been ordered to be produced by the Arbitral Tribunal.
The guidelines referred to in Article 18.5 are intended to “promote generally the good and equal conduct of the parties’ legal representatives appearing by name within the arbitration proceedings” (paragraph 1) and are a welcome addition to the new LCIA rules. Further, the guidelines will be contractually binding on the parties once they have adopted the new LCIA Rules. The sanction for non compliance is at Article 18.6, which gives the tribunal the power to order sanctions such as a written reprimand but also any other measure necessary to maintain the general duties of the Arbitral Tribunal.
Much more to come
What is abundantly clear is that the conduct of advocates is an area that is far from settled and where consistency is required to preserve the integrity of international arbitral awards. This was the background to the introduction of the IBA Guidelines and with the release of the draft LCIA Rules providing for the good and equal conduct of the parties’ legal representatives, it is unlikely to be long before other international arbitral institutions follow suit.